§20.6 - Rights and Duties Before Foreclosure

• Jurisdiction: Washington

§20.6 RIGHTS AND DUTIES BEFORE FORECLOSURE

In Washington, a lien theory state, the mortgagor retains the title to the property until the sheriff's deed is delivered. Having the title to the property, the mortgagor is entitled to possession of the property. Parks v. Yakima Valley Prod. Credit Ass'n, 194 Wash. 380, 78 P.2d 162 (1938). Because the mortgagee only has a lien, the mortgagee does not have any right to possession until there has been a sheriff's sale and the mortgagee is the successful bidder. Norlin v. Montgomery, 59 Wn.2d 268, 367 P.2d 621 (1961), overruled on other grounds, Kendrick v. Davis, 75 Wn.2d 456, 452 P.2d 222 (1969). If the property is subject to a homestead under RCW 6.23.110(4), the mortgagor may live on the property throughout the redemption period. With these basics in mind, the results as to trees, crops, emblements (annual crops produced by cultivation, which are personal property), and injury to the property follow rather automatically.

(1) Trees, crops, emblements, and injury to the property

A mortgagee only has a lien and does not have the right to the trees, crops, and emblements, nor does the mortgagee have a right to bring an action for waste or injury to the property unless the actions of the mortgagor are of such a nature as to render the property insufficient for the satisfaction of the debt or of doubtful security. Annotation, Right of Mortgagee to Maintain Suit to Stay Waste, 48 A.L.R. 1156 (1927); Clapp v. City of Spokane, 53 F. 515 (E.D. Wash. 1892). The rules for a mortgagee in...